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Tuesday, September 17, 2013

The AG represented the state and Barrister Razzaq represented Mollah. Razzaq went to dais and submitted as follows:

“My lords, on the previous day, I was on the issue ‘why international law is applicable in deciding this matter?’. Let us see the short title, long title and preamble of the 1973 Act (ICT Act 1973). The word ‘international’ is used several times in the Act.” He particularly noted that, “International Crimes Tribunal Act 1973, this is the title of the Act. Here, the words ‘crime’ and ‘tribunal’ are noun and the word ‘international’ is adjective; thus the crime is international; not the tribunal. The long title it has been expressly stated that the Act is intended to provide for the detention, prosecution and punishment for crime sunder international law.”

Sinha J. argued, “in the section 3 (2), the crimes has been stated and explained. The crimes- ‘genocide’, ‘crime against humanity’ and ‘war crimes’ are separately stated there. ‘Any other crime under international law’ is separate from the earlier ones. Thus, the phrase ‘under international law’ does not include all others.

Razzaq then continued his submission, “In the preamble the long title has been repeated. Now let us examine what are the acts considered as crime against humanity under section 3 (2) (a) of the ICT Act 1973 also considered as crime under the Penal Code as well. There are 10 acts under this sub-section (2) (a) of section 3; those are: (1) murder (also a crime u/s 300 of Penal Code), (2) extermination, (3) enslavement, (4) deportation, (5) imprisonment, (6) abduction (also a crime u/s 362 of Penal Code but abduction in the ICT Act is not similar to ‘general abduction’ under Penal Code), (7) Confinement (also a crime under Penal Code), (8) torture, (9) rape (also a crime u/s 375 of Penal Code) and (10) persecution. Among the 10 acts only 4 acts have been defined as crimes by the Penal Code; now, the question is- from where we shall find the definition of other crimes?”

He further submitted, “Murder’ has been defined differently under the Penal Code but still your lordships has considered that it has been defined. Now lets us move to the second crime under the section 3 (2) i.e. crime against peace which has got 3 elements: (1) preparation, (2) planning, and (3) violation of international treaties/agreements. The third crime Genocide is the most important one but it has not been defined. The crimes under this sub-section has not been defined either.”

Mr Razzaq then referred to a full-bench judgement of the Appellate Division of the Supreme Court Bangladesh which was cited in the DLR (Dhaka Law Reports). He particularly referred paragraphs 9 and 10 of the judgement and readout before the bench quoting D.C. Bhattachariya, “…one has to treat the Act wholly; one part of the Act is an aid to other…the preamble of the statute is one of the best things to describe the Act.”

He further referred to Indian case [AIR 1942 at page 17] (and relevant page is 18) on interpretation of the statute.

After an adjournment, the bench sat again.

Mr Razzaq, the defence counsel, went to the dais and said, “My lords, the previous day one of your lordships asked us to provide the list of the websites from where we have downloaded the cases we have submitted before your lordships. I am now submitting the list of the websites before your lordships.”

He then formally started his submission regarding the detention issue of the accused petitioner Molla. He particularly referred to article 6 of the UN Charter and submitted that UNHCR declared Molla’s detention was unlawful. Therefore, I shall request to your lordships to respect the customary international law.”

At this point Shamsuddin Chowdhury J. started arguing with the defence counsel Razzaq claiming that everything is not customary international law. The CJ asked Razzaq to continue apparently ignoring Chowdhury’s comment.

Wahab J. argued, “detention might be unlawful during the trial process but now conviction has already been imposed, therefore, there is no problem now. At this stage, Sinha J. asked “Whether the decision by UNHCR is binding upon us (on the Apex Court of the country)? What is the authority?” Razzaqq replied, “Under the UN Charter.” Sinha J. made counter argument, “Can you try a U.S. soldier in ICC? This is something like that- ‘if you agree (with international law) it’s OK, if you do not agree that’s also OK’”. Razzaq replied, “Well, the matter is different for Bangladesh. U.S. is not a signatory.”

He then continued his submission, The CJ interrupted at this point and asked Razzaq, “Before you proceed, may I ask you, was the government notified about the UNHCR decision that Molla’s detention was unlawful)?” Razzaq replied, “Yes, my lord. Learned Deputy AG is aware of the fact.” However, Shamsuddin Chowdhury J. criticised, “They are not even judicial body.” Sinha J. added, “If you choose any forum other than this court then go to them. Do not come to us.” Razzaq argued, “The Report by the International Law Commission is not binding on us but out court recognises that under customary international law”

At this point there was a harsh exchange of words between the Shamsuddin Chowdhury J. and the defence counsel Razzaq. Chowdhury J. heavily criticised, “Mr Razzaq, a lawyer of your standing should not mislead the apex court of the country. Everything you are identifying as customary international law is not the customary international law.” Razzaq replied, “My lord, you enlighten with huge knowledge but I have lesser knowledge. Please give us time so that we can study and then appear before your lordship.”

After that Razzaq, continued with his submission, 'My point is- here plan and policy is not an element of the crime. He then referred to a decision of ICTR.” He readout paragraph 86 of the said judgement in relation to elements of crime. Sinha J. aksed him, “What does knowledge means here?” Razzaq replied, “Knowledge means constructive or actual knowledge.” Sinha J. further asked him, “Why should we follow that ICTR decision? Please explain whether in our context it can be applied or not? That is why we need to know the facts and contexts.” Razzaq replied, “My lord, if you ask I shall bring thousand page judgments for you.” The CJ warned, “Do not forget that it is the Apex court of the country, this is not just the appellate ICT.” Wahab J. added, “Probably this is the first time in the world the apex court has become the appellate authority.”

Afterwards, again there was an exchange between Chowdhury J. and Razzaq and Razzaq finally concluded, “I am a bad lawyer; I could not make understand my point.”

About Me

This is a personal blog, and any views are solely mine. I am a Bangladesh based journalist who has since August 2010 worked as Editor, Special Reports for the Bangladesh national newspaper, New Age (see my other blog on the International Crimes Tribunal in Bangladesh: http://bangladeshwarcrimes.blogspot.com) Prior to working at New Age, between March and September 2010, I worked as a senior editor and reporter at the news website, bdnews24.com and before that I spent seven months at the Bangladesh newspaper, the Daily Star, setting up a small investigations unit. Between 2000 and 2009, I was the Executive Director of the Centre for Corporate Accountability, a UK based not-for-profit organisation concerned with workplace safety. Before that, I worked as a Television journalist and producer for about seven years working mainly for the television production company, Twenty Twenty Television in London. In 1995, I was involved in making the Royal Television Society award winning Channel Four documentary, the 'War Crimes File', a film about war crimes allegedly committed by three men during the 1971 War of Indpendence. I have lived in Dhaka since 2003.